People protest the killing of Deven Guilford at the State Capitol Saturday February 27, 2016 by an Eaton County Sheriff sergeant last year. The event marked the one-year anniversary of his death. Eaton County settled a lawsuit against the sergeant in November 2017 for $2.4 million.(Photo: Robert Killips | Lansing State Journal)Buy Photo

KALAMAZOO - The federal lawsuit against an Eaton County sergeant for the death of a 17-year-old unarmed teen can proceed to a trial on two claims for excessive force, a judge ruled Friday.

Judge Paul Maloney heard oral arguments Tuesday from attorneys for the family of Deven Guilford and the attorney representing Sgt. Jonathan Frost. Frost's attorney had previously filed a motion for summary judgment, asking Maloney to dismiss the case.

Maloney's order issued Friday afternoon dismissed claims for unlawful stop, seizure, arrest, and excessive force prior to Frost’s decision to use his stun gun on Guilford. However, Maloney allowed two claims of excessive force to proceed, writing that "factual disputes" about what transpired after Frost fired his stun gun, and later, his service weapon, can be resolved by a jury.

Maloney detailed those "factual disputes" in his 38-page opinion and was pointed in his criticism, addressing what he described as inconsistencies between Frost's account and the evidence. He added that a jury could find that some of what Frost says occurred was "almost inconceivable."

(Read Maloney's full opinion and order at the bottom of this story.)

James Dyer, Frost's attorney, said he has tremendous respect for Maloney but disagrees with his characterization of some of the facts in the case. He added that he wasn't in a position to comment on whether he would appeal.

An appeal of Maloney's decision would be heard by the Sixth Circuit Court of Appeals in Cincinnati, Ohio.

In his opinion, Maloney wrote that, "Since what happened in the ditch is subject to vociferous dispute, the Court does not see any good-faith basis for an appeal on this claim because purely factual disputes preclude summary judgment."

Cynthia Heenan, an attorney for the Guilford family, said Friday that she's "pleased" with Maloney's ruling.

The traffic stop happened in February 2015 on a rural stretch of M-43 in Roxand Township. Guilford was pulled over for flashing his high beams at Frost. The sergeant was driving a new patrol vehicle and at least one other driver had complained that Frost's headlights were particularly bright.

"The ships on M-43 should have merely 'pass[ed] in the night,'" Maloney wrote in his opinion, referencing a Henry Wadsworth Longfellow poem, a portion of which he included as a footnote. "Tragically, as fate would have it, one would never pass."

There is no video of the final moments of the traffic stop, which included an altercation that ended in a snow-filled ditch. Guilford was shot seven times.

Stun gun use

A Michigan State Police investigation of the shooting included the review of video of the stop, both from Guilford's cell phone — the teen was recording the traffic stop — and Frost's body camera. There's no video of the final moments.

Guilford refused to give Frost his driver's license, registration and proof of insurance. Frost declined requests from Guilford for his badge number.

Frost pulled Guilford from the vehicle, and ordered him to lay on his stomach next to his vehicle. When Guilford would not put both his hands behind his back as Frost was attempting to handcuff him, Frost fired his stun gun into Guilford.

Maloney wrote that while Guilford's "stubbornness and confusion delayed compliance, he nonetheless complied with each order."

"Given the short timeframe, road noise, and Guilford’s confusion and questions," Maloney wrote, "a jury could conclude he was merely taken aback by Sergeant Frost’s sudden decision to jump on his back without warning or that Guilford did not have time to process Frost’s order and so quickly comply to Frost’s liking after Frost first informed him he was under arrest."

Heenan, an attorney for the Guilford family, said Maloney's position on Frost's use of his stun gun was "spot on."

"Judge Maloney said there was no threat," Heenan said. "(Deven) was lying on the ground with his arms spread out in front of him."

Heenan said while the ruling grants Frost immunity for stopping Guilford because he flashed his high beams, Maloney's interpretation of the law in his response outlines that police can't stop motorists solely for that reason, but only if the bright lights cause harm or present a problem.

That sets a precedent for the future, Heenan said.

Final moments and deadly force

Maloney wrote that there are "inconsistencies" in Frost's version of what happened after Guilford got off the ground and charged at him.

"Although Frost had extensive military and police training and experience in hand-to hand combat, and was taller and nearly thirty pounds heavier than Guilford, Sergeant Frost claims he had no option but to shoot his weapon."

According to video and Frost's account: Frost and Guilford moved about 25 feet from the car to the ditch, Guilford pinned Frost down, Guilford punched Frost 10 times, and then Frost started to fire the seven gunshots.

"Frost’s account, which almost certainly would have required at least three times the amount of time the audio allows for," Maloney wrote, "could be rejected by the jury due to impossibility based upon the timing."

Frost has said he was bleeding, losing consciousness and feared for his life so he fired his weapon at Guilford.

"For someone who claims he was being 'pummeled' while lying on the ground, it remains curious that there were relatively few injuries to his face and almost no injuries to the back of his head," Maloney wrote. "...Moreover, Guilford had not a single bruise or cut to his hands — almost inconceivable, a jury could conclude, if he was 'pummeling' Frost to the point where he feared he would lose consciousness."

Maloney also wrote that Frost's account didn't explain a "rather vivid boot-print impression" on Guilford’s right torso.

"Finally, perhaps most significantly, the trajectories and paths of the bullets through Guilford’s body are potentially inconsistent with Frost’s re-constructed version of events," the judge wrote.